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Lord Chief Justice's opening address to The PILS Project Conference

The PILS Project

Strong impacts:  Public interest litigation in action

Hilton Hotel, Belfast - 7th June 2018

The Rt Hon Sir Declan Morgan
Lord Chief Justice of Northern Ireland

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[1]       Good morning ladies and gentlemen.  I am delighted to have been invited to the opening of this conference and wish to extend a warm welcome to Belfast to Mr Justice Cameron.  His experience in the use of litigation in the promotion of human rights values in South Africa is considerable. He is, of course, a distinguished jurist who has an outstanding reputation both as an academic and as a judge. But his involvement in his community extends far beyond that and demonstrates the role that lawyers can play in our society outside the court room. We are very fortunate to have him with us today.

[2]         Our own jurisdiction has developed a large body of public interest litigation, across a wide spectrum of subject areas.  This morning as I speak the Supreme Court is delivering its judgment on the appeal by the Northern Ireland Human Rights Commission on the rights of women to access to abortion here.  The connection between the judicial process and the legislative process is notable in particular because of the substantial political reaction arising from the Irish referendum result and the political response to that in the UK. I am sure that further reaction will follow from the Supreme Court’s decision. That decision will also be of some interest in deciding the entitlement of organisations such as the NIHRC to initiate litigation of this kind.

 

 [3]      In this jurisdiction the litigation coming before the courts has changed.  We have recently had the gay blood donation case, the same-sex adoption case, the gay marriage case, the humanist marriage case and the abortion case.  All concern issues of disputed social policy. These policy issues throw up difficult conflicts at the edges but the determination of these on an individual basis are proper subjects for judicial determination. The balance to be assessed in many of the cases is the adverse impact on the individual of adherence to values treasured by the community. The cases are never easy. The judge is likely to be characterised as a political decision maker so it is important that when these decisions are made they should be explained as carefully as possible. That is where the media have a critical role in ensuring that the public are properly informed of the reasons for such controversial decisions. The proper functioning of the court’s role in this area is highly dependent upon accurate and informed discussion.

[4]       Subject to those observations it seems to me unlikely that the role of courts in our democracy in securing the rule of law by the provision of independent and impartial determinations of even the most difficult and controversial issues is likely to change.   If anything that body of work is growing.  As a result of the failure of politicians to deal with issues relating to the past there is a high number of cases currently before the High Court  relating to legacy matters such as collusion, the failure to hold timely inquests and issues relating to disclosure of information to victims and families.  While the Courts provide a vehicle for these issues to be ventilated, this is not a proper alternative to dealing with these issues in such a way as to provide victims and families with the solutions they seek and promoting reconciliation within the community.

 

[5]       The expanse of public interest litigation from dealing with our past to consideration of infrastructure and economic development for the future all comes before our Courts.  Improved transport links are often said to be vital in re-energising the economy and benefit citizens in their daily lives.  With these projects there is an environmental impact that falls to be assessed.  Two of the major road development projects in Northern Ireland have been considered by the Courts in the context of concerns about environmental harm protected by European legislation.

 

[6]       Such cases raise the important issue of affordability of costs.  In The Alternative A5 Alliance’s Application [2012] NIQB 97, the Alternative A5 Alliance brought what was in effect a statutory judicial review of the proposed 85 kilometre A5 western transport corridor being built because, inter alia, they claimed the Department has breached their EU rights in general and the EIA Directive in particular.  The Alliance claimed that the requirements of Article 9 of the Aarhus Convention which had been incorporated originally in Article 10A now Article 11 of the EIA Directive 2011/92/EU were directly engaged. 

 

[7]       The Alliance sought a Protective Costs Order (“PCO”) of £5,000.  The Department of Regional Development (“DRD”) objected not to the order but to the amount and suggested £50,000.  They also sought a cap on the costs which would be recoverable by them should the Alliance succeed in the sum of £30,000.  The Alliance resisted this and pointed out that the costs which they could recover were limited in any event because their legal team was working at discounted commercial rates.

[8]       In considering the application Horner J stated:

 

 “I have not taken into account the merits as it is not possible for me to form a view other than to say that the Alliance’s case is not obviously going to fail.  In those circumstances, I propose to make a PCO and cap the costs liability of the Alliance at £20,000.  Given that there are approximately 135 persons involved with the Alliance, this works out at just over £150 per person.  I do not consider that this is “prohibitively expensive” even when taking into account the contribution that each of the members of the Alliance must make to the Alliance’s own costs.  I am of the view that this meets the requirements of the Aarhus Convention.  I do not propose to make any cap on the costs which may be recoverable from the Department should the Alliance succeed.  As I have said, those costs are already, to some extent, capped and I consider it is the fair way to deal with the matter as it takes into account the merits of the claim.  In other words, should the Alliance succeed, those involved will not be out of pocket.  It seems to me that this achieves a fair and equitable balance.  If the Alliance loses, the costs it will pay are capped at £20,000.  If it succeeds, its costs will almost certainly be paid in full because in these types of cases costs almost always follow the event.”

 

[9]       Given the size of the group involved in this litigation the contribution of each member was manageable.  However there is no doubt that costs are a major consideration for parties in litigation, no less so when the issues involved are of general public interest rather than private law matters.  PCOs limit the costs liabilities of an applicant where the court is of the view that the issues to be raised are of a wider public interest and that they should for that reason be heard. Indeed, while the early case law established that PCOs could not issue where the applicant had a private interest in the outcome of the case, subsequent case law has since held that this need not always be so where the application still raises important points of public interest.  In Re Thompson’s Application [2010] NIQB 38 http://www.bailii.org/nie/cases/NIHC/QB/2010/38.html.  I held that the applicant’s private interest in the outcome of the case (which related to her objection to a proposed residential development near to a housing development in which she lived) should not weigh against her in having a PCO granted.  The emphasis, once more, has therefore been on tracking possible government illegality rather than allowing it go unchallenged.

 

[10]     The Aarhus Convention requires that environmental challenges not be “prohibitively expensive”, thus the use of protective costs orders.  There has been discussion of widening the types of judicial review cases in which costs orders might be made.  However, any changes would require legislation which may be problematic in light of the forthcoming Brexit legislative crush in Westminster.

 

[11]     The term judicial activism has been suggested to describe the role the courts have in determining the lawfulness of executive decision making.  In my view this is not appropriate. Much of what has occurred has been the inevitable consequence of the statutory focus on a rights based jurisprudence. It is in a sense the inevitable consequence of the introduction of the jurisprudence of the two international European courts and the drawing in through those courts of international soft law. All of this has driven the Courts to scrutinise carefully any suggested limit to its competence. There continues to be considerable debate about the extent of that competence but it is not the purpose of this talk to address that issue so I will leave that for another day.